The Corner

Majority of Democrats, 37 Percent of Republicans Want to Repeal First Amendment

Depressing news from YouGov:

YouGov’s latest research shows that many Americans support making it a criminal offense to make public statements which would stir up hatred against particular groups of people. Americans narrowly support (41%) rather than oppose (37%) criminalizing hate speech, but this conceals a partisan divide. Most Democrats (51%) support criminalizing hate speech, with only 26% opposed. Independents (41% to 35%) and Republicans (47% to 37%) tend to oppose making it illegal to stir up hatred against particular groups.

Support for banning hate speech is also particularly strong among racial minorities. 62% of black Americans, and 50% of Hispanics support criminalizing comments which would stir up hatred. White Americans oppose a ban on hate speech 43% to 36%.

It’s important to note here that “stir up hatred against” does not mean “instruct a crowd to kill” or “explicitly incite violence against.” Both of those things are already illegal under the Supreme Court’s 1969 Brandenburg standard. Rather, it is a fancy way of saying “be really mean to.” As YouGov notes:

unlike much of the rest of the developed world . . . the United States does not make it a criminal offense for people to make statements which encourage hatred of particular groups. For example a prominent British columnist, Katie Hopkins, is being investigated by the police for referring to African migrants crossing the Mediterranean as ‘cockroaches’.

You will note that Hopkins did not threaten African migrants, and nor did she ask her readers to meet her the next day and embark upon a violent crusade. She merely said horrible, uncouth things. In America, she would have been absolutely fine. In England, she can — and may — be prosecuted under the Public Order Act.

Should Americans wish to become more like the British, they would have to do no less than to repeal the First Amendment. As Ken White, better known as “Popehat,” explains:

In the United States, “hate speech” is an argumentative rhetorical category, not a legal one.

“Hate speech” means many things to many Americans. There’s no widely accepted legal definition in American law. More importantly, as Professor Eugene Volokh explains conclusively, there is no “hate speech” exception to the First Amendment. Americans are free to impose social consequences on ugly speech, but the government is not free to impose official sanctions upon it. In other words, even if the phrase “hate speech” had a recognized legal definition, it would still not carry legal consequences.

This is not a close or ambiguous question of law.

When the media frames a free speech story as an inquiry into whether something is “hate speech,” it’s asking a question of morals or taste poorly disguised as a question of law. It’s the equivalent of asking “is this speech rude?”

When it comes to the protection of free expression, the United States is exceptional among nations. That there are so many people in this country who wish to change that is terrifying and sad.

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